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No. 08-469

 

In the Supreme Court of the United States

DEVON HOWARD TOEPFER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

GREGORY G. GARRE
Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
J. CAM BARKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court violated petitioner's Fifth and Sixth Amendment rights when, in determining his sentence, it relied on relevant conduct that underlay counts on which he had been acquitted.

2. Whether the district court committed reversible plain error because it failed to consider the factors un der 18 U.S.C. 3553(a) before imposing sentence.

 

 

In the Supreme Court of the United States

No. 08-469

DEVON HOWARD TOEPFER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-13a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on July 9, 2008. The petition for a writ of certiorari was filed on October 7, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Southern District of Florida, petitioner was convicted of several crimes arising from his involve ment in a conspiracy to grow and distribute marijuana. Pet. App. 2a, 14a-15a. He was sentenced to 140 months of imprisonment. Id. at 16a. The court of appeals af firmed. Id. at 1a-13a.

1. From 1994 to 2003, petitioner and several co-con spirators operated ten marijuana "grow houses" across southern Florida. Petitioner funded and oversaw the operation, recruited individuals to the conspiracy, and taught them how to grow marijuana. Presentence Re port ¶¶ 4-15, 21, 22 (PSR). After a grand jury began to investigate the conspiracy, petitioner also gave diaze pam (Valium) pills to two co-conspirators who had been called to testify so that they could take the pills before testifying. Id. ¶ 15.

On March 29, 2005, a grand jury returned a 15-count superseding indictment against several of the conspira tors. Petitioner was charged with the following: con spiring to manufacture and possess with intent to dis tribute marijuana, in violation of 21 U.S.C. 846 (Count 1); manufacturing and possessing with intent to distrib ute marijuana, in violation of 21 U.S.C. 841 (Counts 2 and 4); attempting to distribute marijuana, in violation of 21 U.S.C. 841 (Count 3); possessing with intent to dis tribute marijuana, in violation of 21 U.S.C. 841 (Count 5); tampering with witnesses, in violation of 18 U.S.C. 1512 (Count 8); distributing diazepam, in violation of 21 U.S.C. 841 (Counts 9 and 10); conspiring to launder money, in violation of 18 U.S.C. 1956 (Count 11); and making material false statements to a lending institu tion, in violation of 18 U.S.C. 1014 (Counts 14 and 15). The government also alleged that Counts 1 and 2 in volved at least 1000 marijuana plants, which, if proved, would have mandated a 10-year minimum term of im prisonment. 21 U.S.C. 841(b)(1)(A)(vii).

Petitioner went to trial on all counts. On the morn ing of the first day of trial and immediately before swearing in the jury, the district court told petitioner that "I did want to let you know the lay of the land be fore we proceed." 12/5/05 Tr. 3.1 The court then in formed petitioner of the sentencing ramifications if the jury were to find that he was responsible for at least 1000 marijuana plants under Counts 1 or 2: the court would have "no discretion" as to the sentence, petitioner would be sentenced to at least ten years of imprison ment, and the court "would be bound to any finding that the jury makes." Ibid. Petitioner said he understood those consequences. Ibid.

A 14-day trial ensued, at the end of which the jury found petitioner guilty on four counts: conspiring to manufacture and possess with intent to distribute mari juana, in violation of 21 U.S.C. 846 (Count 1); manufac turing and possessing with intent to distribute mari juana, in violation of 21 U.S.C. 841 (Count 2); and dis tributing diazepam, in violation of 21 U.S.C. 841 (Counts 9 and 10). Pet. App. 14a-15a. The jury also found that Counts 1 and 2 had involved more than 100 but fewer than 1000 marijuana plants. Id. at 8a. The jury acquit ted petitioner on the remaining counts. Id. at 15a.

Petitioner faced a statutory maximum term of im prisonment of 40 years each on the two marijuana con victions, 21 U.S.C. 841(b)(1)(B), and three years each on the two diazepam convictions, 21 U.S.C. 841(b)(2). The Presentence Report recommended that petitioner be sentenced to a term of 121 to 151 months of imprison ment. PSR ¶ 72. That recommendation was based, in part, on the PSR's finding by a preponderance of the evidence that petitioner was responsible for 3744 mari juana plants. Id. ¶ 22; PSR Add. 1-2. That finding re sulted in a base-offense level of 26. PSR ¶ 32.2

At sentencing, petitioner objected to the PSR be cause it had considered acquitted conduct in determin ing his advisory Sentencing Guidelines range. In his view, that was inconsistent with United States v. Booker, 543 U.S. 220 (2005). 4/19/06 Tr. 6, 19, 30-31. The gov ernment disagreed, cited Eleventh Circuit authority indicating the court's responsibility to consider relevant conduct, and emphasized that the court should "consider the statutory factors within 18 U.S.C. 3553(a), the ten different factors I am sure the Court is familiar with." Id. at 15-16. The court rejected petitioner's objection, accepted the PSR's computation, and, after stating that it had considered the "pre-sentence report which con tains the advisory guidelines and the statutory factors," sentenced petitioner within the Guidelines range to 140 months of imprisonment. Id. at 31-32. Petitioner made no objections to the court's sentencing procedures. Id. at 33.

2. The court of appeals affirmed in an unpublished, per curiam opinion. Pet. App. 1a-13a. As is relevant here, the court rejected petitioner's claim that the dis trict court violated his Fifth and Sixth Amendment rights by considering acquitted conduct at sentencing. The court of appeals held that "[b]ecause the district court applied the guidelines in an advisory manner * * * and did not exceed the statutory maximum al lowed by the jury verdict, the [sentencing] court did not violate [petitioner's] Fifth or Sixth Amendment rights by calculating his sentence based on judge-found facts, including acquitted conduct." Pet. App. 7a (citing Rita v. United States, 127 S. Ct. 2456, 2465-2466 (2007); Booker, 543 U.S. at 264; United States v. Duncan, 400 F.3d 1297, 1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005)). The court also rejected petitioner's claim, raised for the first time on appeal, that the district court failed to consider the sentencing factors in 18 U.S.C. 3553(a). Applying plain-error review, the court assumed plain error but held that petitioner "cannot show that the error affected his substantial rights" because he "points to no evidence in the record showing that if the district court had explicitly considered the § 3553(a) factors, the court would have imposed a different sen tence." Pet. App. 9a-10a.

ARGUMENT

1. Petitioner renews his claim (Pet. 7-15) that the district court violated his Fifth and Sixth Amendment rights by considering acquitted conduct at sentencing. The court of appeals correctly rejected that contention, and its decision accords with the decision of every other court of appeals. This Court's review is therefore not warranted.

a. In United States v. Watts, 519 U.S. 148 (1997) (per curiam), this Court held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponder ance of the evidence." Id. at 157. The Court noted that, "under the pre-Guidelines sentencing regime, it was 'well established that a sentencing judge may take into account facts introduced at trial relating to other charges, even ones of which the defendant has been ac quitted,'" id. at 152 (citation omitted), and that "[t]he Guidelines did not alter this aspect of the sentencing court's discretion," ibid.

Although Watts specifically addressed a challenge to consideration of acquitted conduct based on double jeop ardy principles, the clear import of the Court's decision is that sentencing courts may take acquitted conduct into account at sentencing without offending the Consti tution. See Watts, 519 U.S. at 157. That principle pre dated the Sentencing Guidelines, see id. at 152, and it fully applies to the advisory guidelines put into place by United States v. Booker, 543 U.S. 220 (2005).

Contrary to petitioner's contentions (Pet. 10-13), this Court's decisions in Booker and subsequent cases con firm that there is no constitutional infirmity in a judge basing the defendant's sentence, within the statutory maximum, on conduct that was not found by the jury. That is true whether the conduct was not charged at all or whether it formed the basis of charges on which the jury did not find the defendant guilty.

Booker and cases elaborating on that decision make clear that, under the advisory Guidelines regime cur rently in place, judicial fact-finding to impose a sentence within the statutory maximum set forth in the United States Code does not violate the Sixth Amendment. As the Court explained in Booker:

We have never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range. * * * For when a trial judge exercises his discretion to select a specific sen tence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.

543 U.S. at 233 (citations omitted). This Court reaf firmed in Cunningham v. California, 549 U.S. 270 (2007), that "there was no disagreement among the Jus tices" that judicial fact-finding under the Sentencing Guidelines "would not implicate the Sixth Amendment" if the Guidelines were advisory. Id. at 285. And, in the Court's recent decision in Rita v. United States, 127 S. Ct. 2456 (2007), the Court again confirmed that its "Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence." Id. at 2465-2466; see id. at 2467 (noting Booker's recognition that fact-finding by federal judges in application of the Guidelines would not implicate the constitutional issues confronted in that case if the Guide lines were not "binding") (quoting Booker, 543 U.S. at 233).

In discussing the type of information that the sen tencing court could consider under an advisory Guide lines regime, Booker made no distinction between ac quitted conduct and other relevant conduct. See, e.g., 543 U.S. at 252 (emphasizing the need to consider all relevant conduct to achieve "the sentencing statute's basic aim of ensuring similar sentences for those who have committed similar crimes in similar ways"). To the contrary, after emphasizing the judge's "broad discre tion in imposing sentence within a statutory range," id. at 233, Booker cited Watts for the proposition that "a sentencing judge could rely for sentencing purposes upon a fact that a jury had found unproved (beyond a reasonable doubt)," id. at 251.

Consistent with those principles, the district court was allowed to find petitioner accountable for 3744 mari juana plants and to sentence him in accordance with that finding to 140 months of imprisonment, which is well within petitioner's 40-year statutory maximum term of imprisonment. The court was not precluded from doing so by the jury's finding that the government had not proved beyond a reasonable doubt that the conspiracy involved 1000 or more marijuana plants. See p. 3, supra. That finding in no way prevents the sentencing court from determining that petitioner's accountability for 1000 or more marijuana plants was established by the preponderance of the evidence. The preponderance standard is a lower threshold of proof, and it is entirely consistent for the judge to find that threshold satisfied even if the jury found that the proof falls short of elimi nating reasonable doubt. Watts, 519 U.S. at 156. The jury's finding on drug quantity does not prevent the dis trict court from reaching its conclusions at sentencing. And it would be incongruous to deny a district court the ability to rely on its findings when the court would be free to make the same findings if drug quantity had never been charged at all.

b. This Court's review is particularly unwarranted because, as petitioner acknowledges (Pet. 9), there is no conflict among the circuit courts on this issue. Since Booker, every court of appeals with criminal jurisdiction has held that a district court may consider acquitted conduct at sentencing. See United States v. Jimenez, 513 F.3d 62, 88 (3d Cir.), cert. denied, 128 S. Ct. 2460 (2008); United States v. Ashworth, 247 Fed. Appx. 409, 409-411 (4th Cir. 2007), cert. denied, 128 S. Ct. 1738 (2008); United States v. Mendez, 498 F.3d 423, 426-427 (6th Cir. 2007);3 United States v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007), cert. denied, 128 S. Ct. 1737 (2008); United States v. Mercado, 474 F.3d 654, 656-658 (9th Cir. 2007), cert. denied, 128 S. Ct. 1736 (2008); United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United States v. Farias, 469 F.3d 393, 399 & n.17 (5th Cir. 2006), cert. denied, 127 S. Ct. 1502 (2007); United States v. Dorcely, 454 F.3d 366, 371 (D.C. Cir.), cert. denied, 127 S. Ct. 691 (2006); United States v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v. Vaughn, 430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547 U.S. 1060 (2006); United States v. Magallanez, 408 F.3d 672, 684-685 (10th Cir.), cert. denied, 546 U.S. 955 (2005); United States v. Duncan, 400 F.3d 1297, 1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005). This Court has also repeatedly denied petitions for a writ of certiorari raising this issue,4 including after its recent decisions in Rita, supra, and Gall v. United States, 128 S. Ct. 586 (2007).5 There is no reason for a different result in this case.6

2. Petitioner also seeks review (Pet. 16-23) of the court of appeals's application of plain-error review to the district court's failure to consider the sentencing factors under 18 U.S.C. 3553(a). Review of that claim is unwar ranted.

a. The court of appeals held that the district court's alleged error did not affect petitioner's "substantial rights" - and therefore was not reversible - because petitioner could "point[] to no evidence in the record showing that if the district court had explicitly consid ered the § 3553(a) factors, the court would have imposed a different sentence." Pet. App. 10a. As an initial mat ter, that holding does not warrant review because the district court did not fail to consider the Section 3553(a) factors. The parties' arguments focused on various guidelines enhancements and the consideration of ac quitted conduct, but in the course of that discussion, the government stated that Eleventh Circuit authority re quired the court to consider the factors in 18 U.S.C. 3553(a), with which, the government was sure, the court was "familiar." 4/19/06 Tr. 15-16. And, before announc ing its sentence, the court explained that it had consid ered the presentence report, which contained the advi sory guidelines calculations as well as material bearing on the "statutory factors," and determined to impose a Guidelines sentence. Id. at 31-32.

The courts of appeals are unanimous that a district court need not specifically advert to the Section 3553(a) factors or run through them by rote, in checklist fashion. See, e.g., United States v. Johnson, 534 F.3d 690, 695 (7th Cir. 2008) (noting that "a district court judge need not apply all § 3553(a) factors in a systematic or check list fashion") (internal quotation marks and citation omitted); United States v. Kirchhof, 505 F.3d 409, 413 (6th Cir. 2007) ("If the record demonstrates that the sentencing court addressed the relevant factors in reaching its conclusion, the court need not explicitly con sider each of the § 3553(a) factors or engage in a rote listing or some other ritualistic incantation of the fac tors."); United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) ("[A] checklist recitation of the section 3553(a) factors is neither necessary nor sufficient for a sentence to be reasonable."). Here, while the district court did not specifically enumerate the application of the Section 3553(a) factors, the court was plainly aware of them. It heard the parties' arguments in the course of the sen tencing (none of which specifically referred to the Sec tion 3553(a) factors, other than the comment by the gov ernment noted above), and it imposed a sentence within the Guidelines range. That consideration of the Section 3553(a) factors was sufficient. As in Rita, the court "must have believed that there was not much more to say." 127 S. Ct. at 2469. While the court "might have said more," where, as here, the context and record make clear that the court must have thought that the Guide lines sentence was appropriate in this "conceptually sim ple" case, ibid., no more is required. Because the court did not err, petitioner would not be entitled to relief un der any view of the plain-error doctrine.

On the issue of plain error, petitioner contends (Pet. 16-23) that the courts of appeals disagree on whether a district court's failure to treat the Sentencing Guidelines as advisory is reversible plain error absent a showing that the district court would have imposed a different sentence but for that error. See Pet. 19 & n.12. That question has no bearing on petitioner's case, see Pet. App. 7a (noting that "the district court applied the guidelines in an advisory manner"), and therefore does not justify this Court's review.

In any event, review of that question is not war ranted because it is of rapidly diminishing importance, as the transitional cases to which it applies have virtu ally all been resolved. In the wake of Booker, the courts of appeals have adopted varying approaches to review ing unpreserved claims of Booker error. This Court, however, has repeatedly declined to resolve the circuit conflict on the issue of the proper application of the plain-error test to Booker error. See, e.g., Rodriguez v. United States, 545 U.S. 1127 (2005) (No. 04-1148). There is no reason for a different result here.

b. Petitioner suggests (Pet. 22-23) that the court of appeals's holding conflicts with this Court's decision in United States v. Dominguez Benitez, 542 U.S. 74 (2004). That is incorrect.

In Dominguez Benitez, the Court stated that a de fendant may show that an unpreserved error affected his "substantial rights" only if he can "show a reasonable probability that, but for the error," the outcome of his proceeding would have been different. 542 U.S. at 83. The court of appeals followed that reasoning when it held, based on the sentencing record, that there was no probability that the district court would have imposed a different sentence but for its alleged failure to consider the 18 U.S.C. 3553(a) factors. See Pet. App. 10a ("[Peti tioner] points to no evidence in the record that if the district court had explicitly considered the § 3553(a) factors, the court would have imposed a different sen tence.") (emphasis added). Moreover, the court of ap peals, in its plain-error discussion, relied on its earlier decision in United States v. Rodriguez, 398 F.3d 1291 (11th Cir.), cert. denied, 545 U.S. 1127 (2005). See Pet. App. 9a. Rodriguez, in turn, relied on Dominguez Benitez in holding that the "standard for showing [an error affecting substantial rights] is the familiar reason able probability of a different result formulation, which means a probability 'sufficient to undermine confidence in the outcome.'" 398 F.3d at 1299 (quoting Dominguez Benitez, 542 U.S. at 83). Accordingly, there is no merit to petitioner's suggestion that the decision below con flicts with Dominguez Benitez.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

GREGORY G. GARRE
Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
General
J. CAM BARKER
Attorney

 

 

DECEMBER 2008

1 The record contains two transcripts of the December 5, 2005 pro ceedings, each with different pagination. The cited material is from the transcript filed as Dist. Ct. Docket Entry 394.

2 According to the PSR, the jury held petitioner responsible beyond a reasonable doubt for 661 marijuana plants. PSR ¶ 22. Had the PSR based its recommendation on that figure, petitioner's base-offense level would have been 22.

3 After Mendez, the Sixth Circuit issued an opinion adhering to that ruling but suggested that the defendant petition for rehearing en banc on the question whether the use of acquitted conduct at sentencing violates Booker. United States v. White, 503 F.3d 487, 487 (2007). On November 30, 2007, the Sixth Circuit withdrew the panel opinion in White and granted rehearing en banc. See ibid. Because the panel de cision in Mendez remains in effect, however, there is no current conflict in the lower courts, and this Court's review is not warranted.

4 See, e.g., Edwards v. United States, 127 S. Ct. 1815 (2007) (No. 06-8430); Dorcely v. United States, 127 S. Ct. 691 (2006) (No. 06-547); Armstrong v. United States, 549 U.S. 819 (2006) (No. 05-1548); Lynch v. United States, 549 U.S. 836 (2006) (No. 05-10945); Magluta v. United States, 548 U.S. 903 (2006) (No. 05-952).

5 See, e.g., Morris v. United States, 128 S. Ct. 2502 (2008) (No. 07-1094); Douglas v. United States, 128 S. Ct. 1875 (2008) (No. 07-8765); Hurn v. United States, 128 S. Ct. 1737 (2008) (No. 07-605); Mercado v. United States, 128 S. Ct. 1736 (2008) (No. 07-5810); Smith v. United States, 128 S. Ct. 1737 (2008) (No. 07-7432); Wemmering v. United States, 128 S. Ct. 1737 (2008) (No. 07-7739); Ashworth v. United States, 128 S. Ct. 1738 (2008) (No. 07-8076); Freeman v. United States, 128 S. Ct. 1750 (2008) (No. 07-9368).

6 Petitioner, relying on this Court's decision in Smith v. Massachu setts, 543 U.S. 462 (2005), also argues that the district court violated his Fifth Amendment due process rights when it imposed the 140-month sentence despite petitioner's "reliance on the trial court's plea-related advice." Pet. 13. Smith, however, spoke only to the Fifth Amendment's Double Jeopardy clause and thus does not bear on this case.

Petitioner also incorrectly states (Pet. 12 n.8) that the court of appeals's decision requires sentencing courts to account for acquitted conduct that is proved by a preponderance of the evidence. That issue is not raised in this case. The court plainly held only that the district court did not err by relying on acquitted conduct. Pet. App. 7a-8a.